William & Mary Law Review
Volume 19 | Issue 2
Article 4
Employee Opposition to Discriminatory
Employment Practices: Protection From Reprisal
Under Title VII
Joseph Kattan
Repository Citation
Joseph Kattan, Employee Opposition to Discriminatory Employment Practices: Protection From Reprisal
Under Title VII, 19 Wm. & Mary L. Rev. 217 (1977), http://scholarship.law.wm.edu/wmlr/vol19/
iss2/4
Copyright c 1977 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmlr
EMPLOYEE OPPOSITION TO DISCRIMINATORY EMPLOYMENT PRACTICES: PROTECTION FROM REPRISAL UNDER TITLE VII
JOSEPH KATTAN *
In its effort to enforce the anti-discrimination provisions of Title
VII of the Civil Rights Act of 1964,' the Equal Employment Opportunity Commission (EEOC) relies primarily on individual complaints
to bring to its attention discriminatory employment practices that violate the Act.2 The major burden of enforcing the Act, therefore, rests
on employees who file charges of discrimination with the Commission. One drawback of the Commission's reliance on the complaint
mechanism is that a variety of pressures on aggrieved individuals
may deter them from challenging an employer's policies.3 One such
force is the complexity of both the law and the circumstances of discrimination. 4 Another is the inability of many employees or appli* A.B., Case Western Reserve University; J.D., Northwestern University.
Graduate Student and Fellow, Committee on Public Policy Studies, University of
Chicago. The author would like to express his gratitude to Douglas Laycock and
Jay A. Shulman for their helpful comments on an earlier draft of this Article.
1. 42 U.S.C. § 2000e to 2000e-17 (1970 & Supp. III 1973), as amended by Equal
Employment Opportunity Act of 1972.
2. The EEOC has only limited powers to initiate law suits under the Civil
Rights Act. The Act separates public prevention from private remedies and
places more emphasis on the latter. Comment, Enforcement of Fair Employment
Under the Civil Rights Act of 1964, 32 U. CH. L. REV. 430, 432 (1965). If
charges are not filed by aggrieved individuals the EEOC may initiate civil
actions in the district courts when a person subject to the Act engages in a
"9pattern or practice of resistance to the full enjoyment" of rights secured by
Title VII. 42 U.S.C. 2000e-6(a) & (c) (Supp. III 1973). The EEOC brought
only 39 such suits in fiscal year 1975. 10 EEOC ANN. REP. 8 (1976). In addition,
the EEOC may take internal action on pattern or practice charges filed by its
own members. 42 U.S.C. § 2000e-5(b) (Supp. III 1973). This device, however,
has limited use, and the Commission has given it low priority. U.S. COMM'N ON
CIVIL RIGHTS, FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT 296 (1970) [hereinafter cited as ENFORCEMENT EFFORT]. Consequently, the Commission relies on
aggrieved individuals to notify it of most of the discriminatory practices it considers. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir.
1969); EEOC Dec. No. 74-77, 2 EMPL. PRAC. GUIDE (CCH)
6417 (1974); G.
GINSBURG, CASES AND MATERIALS ON EQUAL EMPLOYMENT 232 (2d ed. 1974).
3. See ENFORCEMENT EFFORT, supra note 2, at 297.
4. See H. R. REP. No. 92-238, 92d Cong., 2d Sess. (1972). This report argues
that when Title VII was enacted congressional understanding of discrimination
was inadequate. Although in 1964 "employment discrimination tended to be
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
cants for employment to produce evidence beyond their own suspicions that discrimination is being practiced.5 A third major impediment is fear of employer reprisal, which primarily deters incumbent
employees from questioning employment conditions in the first instance.'
To protect the integrity of the Act's enforcement machinery, Congress has prohibited employers, employment agencies, or labormanagement committees covered by the Act from retaliating against
employees or applicants for employment who invoke their rights
under Title VII. Section 704 (a) of the Act provides:
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees or applicants
for employment, for an employment agency or joint labormanagement committee . . . to discriminate against any
individual; or for a labor organization to discriminate
against any member thereof or applicant for membership,
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation,
proceeding, or hearing under
7
this subchapter.
Section 704(a) clearly covers employees who participate in the
EEOC's proceedings: all are protected from employer reprisal if
they file charges in good faith, no matter how implausible their
charges may be.8 The statute is silent, however, as to other types of
protected "opposition" activities. The Act's legislative history indicates only that Congress gave scant attention to this provision. Although the history suggests that Congress possibly intended little
viewed as a series of isolated and distinguishable events, due, for the most part,
to ill-will," it gradually has come to be understood as a complex phenomenon "of
'systems' and 'effects'." Id. at 8. Thus, the problem is one whose resolution often
"requires not only expert assistance, but also the technical perception that the
problem exists." Id.
5. EEOC News Release No. 70-3, at 1 (Jan. 29, 1970), quoted in ENFORCEMENT
EFFORT, supra note 2, at 297.
6.
POWERS,
EQUAL
OPPORTUNITY:
COMPLIANCE
AND
AFFIRMATIVE
ACTION
16
(1969). One writer has suggested that an incumbent employee unhappy with conditions of his employment is more likely to complain of discrimination than the
applicant for employment who is rejected discriminatorily. Blumrosen, The Duty
of FairRecruitment Under the Civil Rights Act of 1964, 22 RUTGERS L. REV. 465,
466-69 (1968). Given that the strong deterrent effect of potential employer
retaliation primarily restrains the incumbent employee, Blumrosen's hypothesis is
difficult to accept. See also Note, Title VII, Seniority Discrimination, and the
Incumbent Negro, 80 HARV. L. REv. 1260 (1967).
7. 42 U.S.C. § 2000e-3(a).
8. Pettway v. American Cast Iron Co., 411 F.2d 998 (5th Cir. 1969).
19771
EMPLOYEE OPPOSITION
more than to safeguard the employee's access to the statutory machinery, 9 as in other labor relations statutes, 10 the evidence is incon-
clusive. Moreover, the broad language of section 704(a), which explicitly protects anyone who has opposed unlawful employment practices, militates against such an interpretation.
9. See notes 26-36 infra & accompanying text.
10. Although protection of individual expression from private, non-violent
interference is rare in our legal system, a number of labor statutes protect
against reprisal those employees who participate in the statutes' enforcement.
See e.g., 29 U.S.C. § 158(a) (4) (1970) (National Labor Relations Act); 29
U.S.C. § 215 (a) (3) (1970) (Fair Labor Standards Act) ; 29 U.S.C. § 660(c) (1)
(1970) (Occupational Safety and Health Act); 29 U.S.C. § 623(d) (1970) (Age
Discrimination in Employment Act). The latter statute also protects employees
who "oppose" any practice made unlawful by that Act. The National Labor
Relations Act protects employees from interference with their right to organize
by insulating those engaging in union organizing activities from employer
reprisal. 29 U.S.C. §§ 157, 158(a) (1) (1970). See, e.g., Atlantic Towing Co., 75
N.L.R.B. 1169 (1948), enforcement denied, 180 F.2d 726 (2d Cir. 1950) (NLRA's
§ 7 protects erroneous statements made by employees during union organizing
campaign unless made maliciously or with knowledge of their falsity). In Old
Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264
(1974), the Supreme Court, citing Atlantic Towing, stated:
Vigorous exercise of this right "to persuade other employees to join"
must not be stifled by the threat of liability for the overenthusiastic
use of rhetoric or the innocent mistake of fact. Thus, the [NLRBJ
has concluded that statements of fact or opinion relevant to a union
organizing campaign are protected by § 7, even if they are defamatory and prove to be erroneous, unless made with knowledge of their
falsity.
Id. at 277-78. See also NLRB v. Cement Transp., Inc., 490 F.2d 1024 (6th Cir.),
cert. denied, 419 U.S. 828 (1974). Similarly, the Labor-Management Reporting
and Disclosure Act guarantees union members the right to express "any views,
arguments, or opinion" free from union reprisal. 29 U.S.C. § 411(a) (2) (1970).
See Salzhandler v. Caputo, 316 F.2d 445, 451 (2d Cir.), cert. denied, 375 U.S. 946
(1963). California's Labor Code, which prohibits employers from engaging in
activities that interfere with the free political activities or affiliations of employees, may offer the most extensive statutory protection of employee speech.
CAL. LAB. CODE § 1101 (West 1972). See Lockheed Aircraft Co. v. Superior Court,
28 Cal. 2d 481, 171 P.2d 21 (1946).
Recently, public employees' speech activities also have received increased protection. Justice Holmes's statement that a public employee "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,"
McAuliffe v. Mayor of New Bradford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892),
no longer is accurate. Public employees now may speak broadly on matters of
public concern without being subjected to employer reprisals. See Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Educ., 391 U.S. 563 (1968).
See generally T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSIoN 566-75
(1970); Van Alstyne, The Constitutional Rights of Public Employees: A Comment on the Inappropriate Uses of an Old Analogy, 16 U.C.L.A.L. REV. 751
(1969).
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
This uncertainty has resulted in inconsistent applications of the
opposition clause of section 704(a). Some courts protect opposition
only when the opposed practice is actually unlawful; other regard the
legality of the opposed practice as irrelevant."1 Some authorities protect only nondisruptive opposition, but the EEOC considers even
picketing or work stoppages legitimate opposition activities. 12 The
Supreme Court has indicated only that section 704 (a) protects
"legitimate civil rights activities"; 3 it has not decided whether the
statute "extends only to the right of access [to the EEOC] or well
beyond it." 14
Section 704 (a)'s broad command would render unreasonable a
limitation of its protection to employees who file complaints with the
EEOC or who otherwise participate in its proceedings. A liberal protection of opposition activities without regard to their impact on the
employment relationship, however, would controvert Congress's intent
in enacting Title VII to leave management prerogatives and union
freedoms "undisturbed to the greatest extent possible." 15 Section
704 (a) clearly was designed to augment the enforcement provisions
of Title VII in promoting nondiscrimination." Its proper scope may
be determined by considering the manner in which it best serves the
efficient operation of that enforcement while maintaining industrial
peace-a central theme of United States labor laws. "
This Article evaluates the degree of protection afforded employees
who oppose employer conduct that they perceive to be discriminatory.
Its basic premise is that section 704 (a) protects all non-coercive employee activities that reasonably are related to obtaining access to
Title VII's enforcement machinery or that are designed to secure
arms-length private settlements of discrimination disputes. Protection should not extend to coercive actions, however, because they
manifest avoidance of the elaborate mechanisms provided by the law
for ascertaining and resolving claims of discrimination in favor of
unilateral resolution of a dispute by the employee. Furthermore, in
11. See notes 68-73 infra & accompanying text.
12. See notes 62-63, 74-91 infra & accompanying text. See generally B. SCHLEI
& P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 416-41 (1976).
13. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
14. Emporium Capwell Co. v. Western Addition Community Organization, 420
U.S. 50, 71 n.25 (1975).
15. H.R. REP. No. 914, 88th Cong., 1st Sess. (1963), reprinted in U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMM'N, LEGISLATIVE HISTORY OF TITLES VII AND XI
OF THE CIVIL RIGHTS ACT OF 1964, at 2150 (1965) [hereinafter cited as LEGISLATIVE HISTORY].
16. See notes 42-50 infra & accompanying text.
19771
EMPLOYEE OPPOSITION
contrast to the EEOC's position that section 704 (a) relief should be
granted if an employee's participation in opposition activities provided one of the reasons for an employer's alleged misconduct, this
Article suggests that relief should be predicated on a showing that
those activities actually were the motivating cause for the employer's
reprisals.
Section 704(a)'s guarantee of protection for certain opposition
activities occasionally may place it in conflict with the exclusivity
principle of the National Labor Relations Act (NLRA), which designates the union as the exclusive bargaining agent for employees
covered by a collective bargaining agreement.' 7 This Article suggests
a means of accommodating a guarantee of opposition activities with
that principle.
THE BACKGROUND OF SECTION
704 (a)
The legislative history of Title VII is an inconclusive guide to the
protection Congress intended to provide persons protesting discrimination in employment. Congress's chief concern in 1964 was to solve
the societal problem of racial discrimination expeditiously. A rising
incidence of civil rights activities, evidencing a new awareness by
racial minorities that the time to end discrimination had come,
brought turmoil to the South. Militance replaced passivity toward
racial inequality, 18 and confrontations between law enforcement
agencies and civil rights demonstrators became increasingly commonplace. In a special message to Congress in June, 1963, President
Kennedy emphasized the "rising tide of discontent that threatens
17. Title VII is not the exclusive remedy for employment discrimination. See
110 CONG. REc. 7207 (1964) (remarks of Sen. Clark). Other remedial tools
available to employees include: (a) grievances pursuant to a collective bargaining agreement, see Meltzer, Labor Arbitration and Discrimination: The Parties'
Process and the Public's Purposes, 43 U. CHI. L. REv. 724 (1976); (b) 42 U.S.C.
§ 1981 (1970) (race discrimination); (c) the Equal Pay Act of 1963, 29 U.S.C.
§ 206 (d) (1) (1970) (sex discrimination); (d) the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970), as amended, 29 U.S.C. § 631
(Supp. III 1973); (e) the National Labor Relations Act, 29 U.S.C. §§ 151-169
(1970), see, e.g., Handy Andy, Inc., 228 N.L.R.B. No. 59 (March 1, 1977),
Meltzer, The National Labor Relations Act and Racial Discrimination:The More
Remedies, the Better?, 42 U. CHI. L. REV. 1 (1974) [hereinafter cited as Discrimination Remedies]; and (f) Executive Order No. 11246, 3 C.F.R. 339 (1965)
(nondiscrimination in federal government employment or under federal government contract). See generally Dent & Martin, Multiple Remedies for Employment
Discrimination:How Many Bites at the Apple?, 16 S. TEx. L.J. 57 (1974).
18. See 2 B.
SCHWVARTZ,
RIGHTS 1017 (1970).
STATUTORY
HISTORY OF THE UNITED
STATES:
CIVIL
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
public safety" and warned that legislative inaction on civil rights
would result in "continued, if not increased, racial stife-causing the
leadership on both sides to pass from the hands of reasonable and
responsible men to the purveyors of hate and violence." 19 The first
congressional report on the bill that later became Title VII spoke
of a "growing impatience by the victims of discrimination with its
continuance." 20 The events in the South awakened the nation's
conscience to the injustice of racial inequality a century after the
abolition of slavery. 21 This new recognition of the moral imperative
22
of enhancing black Americans' social and economic standing, to23
gether with the fear of growing racial tension and violence, motivated Congress to enact the comprehensive Civil Rights Act of 1964.
In its haste to enact a civil rights bill that would quell the nation's
restlessness, Congress gave insufficient consideration to the particulars and nuances of many forms of discrimination. House and Senate
debates principally centered on whether civil rights legislation should
be enacted at all. The inclusion of sex discrimination among the prohibited practices, for example, was wholly fortuitous. It was offered
as an amendment to the bill by a southern Congressman who hoped
to "clutter up" the bill and thereby make it objectionable to more
legislators. 24 The prohibition of sex discrimination thus passed "without even a minimum of congressional investigation." 25 Another provision enacted with similar cursory consideration or appreciation of
its impact was section 704 (a).
The House and the Senate passed the anti-retaliation provision of
section 704 (a) in the form recommended by the House Judiciary
19. Special Message by the President to the Congress (June 19, 1963), H.R.
Doc. No. 124, 88th Cong., 1st Sess. (1963), reprinted in [1963] U.S. CODE CONG.
& AD. NEWS 1526, 1527.
20. LEGISLATIVE HISTORY, supra note 15, at 2018.
21. See B. SCHWARTZ, supra note 18, at 1017.
22. See Developments in the Law: Employment Discriminationand Title VII of
the Civil Rights Act of 1964, 84 HARv. L. REv. 1109, 1113 (1971) [hereinafter
cited as Developments: Title VII].
23. President Kennedy's fears that black discontent threatened the public
safety were exaggerated. As Professor Kalven noted, most civil rights activity
in the early sixties was peaceful, and was conducted in a manner calculated not
to violate the law. He called this "one of the extraordinary achievements of the
[civil rights] movement." H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT
184 (1965). The danger of racial violence nevertheless was real, much of it
attributable to official lawlessness in those states where significant opposition to
civil rights activity existed. See generally United States v. Price, 383 U.S. 787
(1966).
24. See Developments: Title VII, supra note 22, at 1167.
25. Id.
1977]
EMPLOYEE OPPOSITION
Committee. 26 From its inception, section 704 (a) contained the "opposition" clause prohibiting employer or union discrimination against
one who had "opposed any practice" that the Act made unlawful.2"
The Committee Report summarized section 704 (a) as prohibiting an
employer from discriminating "against any of his employees or applicants for employment... because he has made a charge, testified,
assisted, or participated in any manner in the enforcement of this
title." 2 The Report offered no specific explanation of the opposition
clause, however, and section 704 (a) received virtually no further
congressional consideration.
29
In the absence of definitive congressional statements, the purposes
of section 704 (a) may be deduced from the overall aim of the Civil
Rights Act of 1964.30 Although some members of the House Judiciary
Committee questioned whether the bill would end racial turmoil or
"relax the tensions of our troubled times," 31 the majority viewed the
legislation as a measure to end discrimination "before racial unrest
26. During the congressional debates the only change in the provision, which
was numbered § 705 (a) in the original bill, was to renumber it § 704 (a). See 110
CONG. REc. 12813 (1964). See generally Smith, Economic Pressure in Support of
Unlawful Employment DiscriininationClaims, 61 CoRNELL L. REV. 368, 387-88
(1976).
27. 42 U.S.C. § 2000e-3(a) (Supp. III 1973).
28. H.R. REP. No. 914, 88th Cong., 1st Sess. (1963), reprinted in LEGISLATIVE
HISTORY, supra note 15, at 2027-28.
29. A comparative analysis of the House and Senate bills inserted into the
record interpreted § 704(a)'s protection to extend to individuals who either participate in proceedings or investigations under the Act or otherwise support the
Act's policies. LEGISLATIVE HISTORY, supra note 15, at 3070. A later comparative
analysis, however, made no reference to the provision. See Comparative Analysis
of the Civil Rights Bill, H. R. 7152, as Passed by the House of Representatives
and the Senate, 110 CONG. REc. 15999, 16001-04 (1964).
30. One writer has argued that the scant discussion of 704 (a) in the legislative history "shows that the section's framers were only interested in assuring
a free flow of information and access to law enforcement tribunals." Smith, supra
note 26, at 387 (footnote omitted). The paucity of material evincing congressional
intent with respect to the provision, however, counsels that it be construed in the
overall historical context of the legislation. The few statements in the legislative
history regarding § 704(a) provide no conclusive evidence that Congress was
concerned strictly with the enforcement mechanisms; at most they demonstrate
that this interpretation is not foreclosed. Moreover, the few scattered references
in the legislative history to the opposition clause indicate at least some congressional awareness of its potentially expansive scope. See Lopatka, Protection
Under the National Labor Relations Act and Title VII of the Civil Rights Act
for Employees Who Protest Discriminationin Private Employment, 50 N.Y.U.L.
REV. 1179, 1191 n.61 (1975).
31. Additional Views on H. R. 7152, reprinted in LEGISLATIVE HISTORY, supra
note 15, at 2113.
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
[ate] irretrievably into the body of the American industrial system." 32 Thus, the Act attempted to provide an effective means of
enforcing the civil rights of Americans. 3 To this end, Congress
created an elaborate statutory framework, administered by the
EEOC, that was designed to eliminate employment discrimination.
Taken as a whole, the legislative history suggests that Congress
intended to shift the racial battleground from the streets to the
EEOC. 34 Minority grievances were to be resolved not by pressures
and counter-pressures, but through the offices of a commission
created to eradicate discrimination in employment. The necessity for
protest activities such as sit-ins and picketing in support of civil
rights grew out of the absence of any effective legal remedies to combat discrimination. Although the absence of effective legal mechanisms for vindicating individuals' civil rights may have justified
protest prior to the Civil Rights Act, such conduct now may detract
unnecessarily from the effect of the broad range of legal remedies
available under the Act. 5 Congress could not have intended to accord special protection to such activities when its purpose was to
rechannel civil rights efforts to the offices of equal employment
agencies. Needless disruption of industrial peace cannot be countenanced when an enforcement scheme provides an orderly means of
32. LEGISLATIVE HISTORY, supra note 15, at 2150.
33. H.R. REP. No. 914, 88th Cong., 1st Sess. (1963), reprinted in LEGISLATIVE
HISTORY, supra note 15, at 2016.
34. One commentator noted that the Act attempted "to channel discrimination
claims away from friction and contentiousness." Smith, supra note 26, at 389
(footnote omitted).
35. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) (restoration
of seniority). But see International Bhd. of Teamsters v. United States, 431 U.S.
324 (1977) (continuation of pre-Title VII discriminatory seniority system not
per se unlawful). Professor Gould argues that, although "the statute's broad
prohibitive language and the availability of statutory machinery to implement
these prohibitions would appear to make [self-help] measures unnecessary," the
"statutory sanctions provided by the act have proven ineffective." Gould, Black
Power in the Unions: The Impact Upon Collective Bargaining Relationships, 79
YALE L.J. 46, 50 (1969).
Gould attributes the ineffectiveness of the Act's
remedies, in part, to the necessity of filing a court action to compel compliance
by a violator of the Act with an enforceable order. Id. The Act, however, provides that a prevailing plaintiff normally should be awarded attorneys' fees. 42
U.S.C. § 2000e-5(k) (1970). Thus, the costs of bringing a suit generally should
not be a deterring factor. See Newman v. Piggie Park Enterprises, 390 U. S. 400
(1968) (per curiam). See also Christiansburg Garment Co. v. EEOC, 98 S. Ct.
694 (1978) (prevailing defendant not entitled to recover attorneys' fees because
plaintiff's suit was not frivolous, unreasonable, or without foundation).
19771
EMPLOYEE OPPOSITION
225
resolving disputes; rather, the resolution of complaints through legal
channels should be encouraged30
This does not suggest that aggrieved persons should be prohibited
from engaging in all activities that might create disharmony between
labor and management. The Constitution guarantees the right to protest, 37 subject to limitations on the forum that may be used for expression;
however, it does not restrict private interference with
such dissent.39 To construe section 704(a) as providing employees
with protection for all opposition activities would imply that Congress attempted to impose first amendment constraints on private
employers. No evidence suggests that Congress intended such a far36. One writer argues that, because protests provided some of the impetus for
Title VII's enactment, they should be protected even when they violate local
laws. Spurlock, Proscribing Retaliation Under Title VII, 8 IND. L. J. 453, 473
(1975). This argument misinterprets congressional intent, which was not to
enshrine protest activities as the principal method of combatting discrimination
but rather to render them unnecessary by providing a legal mechanism to eliminate the practice.
37. The law has developed significantly since Hughes v. Superior Court, 339
U.S. 460 (1950), which upheld an injunction against the picketing of a store by
blacks who demanded that the business hire black employees .in proportion to
its black customers. The Court accepted the finding of the state courts below
that the purpose of the picketing was unlawful, id. at 462, and suggested further
that states may forbid picketing "under the belief that otherwise community
tensions and conflicts would be exacerbated." Id. at 464. Several commentators
have criticized this rationale as insensitive to first amendment protections. See,
e.g., T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 446-47 (1970); Gould,
supra note 35, at 77-84; Frank, The United States Supreme Court: 1949-50, 18 U.
CHI. L. REV. 1, 9 (1950). More current decisions by the Court, however, demonstrate a greater solicitude for picketers' first amendment rights. See, e.g., NLRB
v. Fruit and Vegetable Packers Local 760, 377 U.S. 58 (1964). Recently, the
Court noted that, if picketing was conducted in a protected forum, the first
amendment "would not permit control of speech .. . to depend upon the speech's
content." Hudgens v. NLRB, 424 U.S. 507, 520 (1976) (footnote omitted).
38. For example, private property owners may prevent picketing on their
premises. See Hudgens v. NLRB, 424 U.S. 507 (1976); Central Hardware Co. v.
NLRB, 407 U.S. 539 (1972).
39. See, e.g., Hudgens v. NLRB, 424 U.S. 507 (1976); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Black v. Cutter Laboratories, 351 U.S.
292 (1956). One commentator has argued that employee opposition activities are
constitutionally protected from employer reprisal unless the employees' conduct
inflicts "an unwarranted degree of harm" on the employer. See Note, Title VII
and N.L.R.A.: Protectionof Extra-Union Opposition to Employment Discrimination, 72 MicH. L. REV. 313, 331 (1973) [hereinafter cited as Extra-Union Opposition]. This analysis is based on a misinterpretation of Gould, supra note 35, who
suggests only that employee picketing should be protected from injunctive interference by the state. See id. at 84 n.162.
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
reaching result.40 The inquiry into activities to be protected from employer reprisal should be narrow, focusing on whether particular
opposition activities are necessary or desirable in the context of Title
VII's remedial framework and Congress's concern for resolving
racial disputes peacefully. These activities may be identified by reference to the scheme of enforcement under Title VII.
PROTECTION OF EMPLOYEE PARTICIPATION IN
PROCEEDINGS UNDER TITLE VII
As noted above, the principal purpose of section 704 (a) is to protect persons who use the Act's statutory machinery to assert discrimination grievances or who otherwise participate in or cooperate
with the enforcement process. Access to this machinery is indispensable to realization of the goals of the Act. Because the EEOC, with
certain exceptions, investigates allegations of discriminatory employment practices only upon the filing of a charge with the EEOC
by or on behalf of an aggrieved party, the agency relies on individual
40. Although other labor statutes offer broad protection for specific employee
speech activities, both the statutory language and the need for protection expressed by those laws are more explicit than they are under § 704(a). Section 7
of the National Labor Relations Act (NLRA), 29 U.S.C. § 157 (1970), guarantees employees "the right to self-organization, to form, join, or assist labor
organizations, . . . and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection." Employer interference
with those rights is an unfair labor practice under § 8(a) (1) of the NLRA. Id.
§ 158(a) (1) (1970). The protection of the right to engage in concerted activities
is explicit; it has been held to extend to picketing their employer during off-duty
hours. See Edir, Inc., 159 N.L.R.B. 686 (1966). The right to organize entails a
right to persuade other employees to join the union, without which self-organization is impossible. Employee speeches and pamphletering are necessary components of the right to organize, as self-organization is based on voluntarism,
not on the requirements of the 'law. Similar activities are not indispensible to
eradicating discrimination. The victim of discrimination must persuade only the
agencies charged with enforcing Title VII of the justness of his cause. The
union organizer cannot achieve his goal so easily. "Employee pressure plays a far
more essential role" under the NLRA than it does under Title VII. Lopatka,
supra note 30, at 1216.
The Labor-Management Reporting and Disclosure Act of 1959, which protects
from union infringement an employee's right "to express any views, arguments,
or opinions," 29 U.S.C. § 411 (a) (2) (1970), is more explicit in its coverage than
is 704(a). This protection is essential to enable an employee, who may or may
not have joined the union voluntarily, from becoming a political captive of his
union. Some argue, nonetheless, that speech seriously weakening the union as
a collective bargaining agent should be unprotected. See Atleson, A Union Member's Right of Free Speech and Assembly: Institutional Interests and Individual
Rights, 51 MINN. L. Rv. 403, 458-59 (1967).
19771
EMPLOYEE OPPOSITION
initiative as a significant aid to enforcement. When the EEOC acts
independently, it understandably selects large employers or labor
4
organizations as subjects for its investigations. '
An employee's charge of discrimination against his employer
inevitably strains the relationship between the two. Although this
risk undoubtedly deters some employees from filing discrimination
charges, it cannot be eradicated by legislation. Overt employer retaliation, however, is a more serious threat to employees' economic
security and thus to the efficient operation of the enforcement
process. Clearly, an employee is unlikely to file a discrimination
complaint if by doing so he subjects himself to discharge or other
serious reprisal. The risk far outweighs the potential gain.
The importance of the charge in the EEOC's enforcement process
requires that the potential complainant be insulated'from employer
reprisal to the maximum extent possible. When a writing satisfies the
liberal procedural requirements of a charge under Title VII, the
complainant clearly is exercising a right protected by section 704 (a) .42
Similar considerations suggest that a person whose charge fails to
comply with the pleading requirements also should be protected from
employer retaliation. 43 In both instances, the complainants' charges
41. In fiscal year 1975 the EEOC issued 39 "pattern or practice" charges.
According to the EEOC: "Virtually all of these charges covered employees or
unions with more than 1,000 employees or members, and many covered employees
with multiple facilities and work forces of up to 25,000 employees." 10 EEOC
ANN. REP. 8 (1976).
42. See, e.g., Bradford v. Sloan Paper Co., 383 F. Supp. 1157 (N.D. Ala. 1974);
EEOC v. Liberty Mut. Ins. Co., 346 F. Supp. 675 (M.D. Ga. 1972), aff'd per
curiam, 475 F.2d 579 (5th Cir.), cert. denied, 414 U.S. 854 (1973); Dobbins v.
Local 212, IBEW, 292 F. Supp. 413 (S.D. Ohio 1968), stayed sub nom. EEOC v.
Journeymen Local 189, 427 F.2d 1091 (6th Cir. 1970).
43. Almost any charge that reasonably identifies the parties and generally
describes the grounds for the employee's belief that the respondent is engaging
in discriminatory employment practices satisfies the EEOC's requirements.
Charges of discrimination may be filed "by or on behalf of a person claiming to
be aggrieved, or by a member of the Commission." 42 U.S.C. § 2000e-5(b) (Supp.
III 1973). The charge must be filed within 180 days of the occurrence of the
alleged discriminatory act, 42 U.S.C. § 2000e-5(e) (Supp. III 1973), and must
contain the names of the parties, a clear and concise statement of the facts, the
number of employees of the respondent union (if known), and a statement of
whether charges have been filed with a state or local fair employment practices
agency. 29 C.F.R. § 1601.11(a) (1976).
For a description of EEOC procedures, see Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 GEo. WASH. L. REV.
824, 862-74 (1972); Note, Limitations Periods for Filing a Charge with the
Equal Employment Opportunity Commission Under Title VII of the Civil Rights
Act of 1964, 56 B.U.L. REV. 760, 761-64 (1976). Despite this liberal pleading
requirement, inarticulately drawn charges nevertheless may be filed with the
WILLIAM AND MARY LAW REVIEW
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provide evidence of their intent to gain access to Title VII's enforcement process, and complete support for these endeavors mandates
that technically inadequate complaints be protected. If an employee's
defective charge is dismissed, he consequently suffers the continuance
of the employer's allegedly discriminatory practice; no purpose would
be served by requiring the complainant to bear the additional burden
of employer retaliation. Although the filing of a defective charge will
cause the employer some inconvenience, it will not affect him in a
manner materially different from the effect of a correctly written
complaint; in both situations the employer will be accused of discrimination before an official body. Thus, when the employee's action is
consonant with the enforcement scheme of Title VII, as is the filing in
good faith of a charge of discrimination, denying protection to the
inartful pleader creates a barrier to the utilization of the process
without advancing any countervailing interests of the employer.
Substantively, section 704 (a) has been construed to protect any
employee or applicant making a bona fide charge, regardless of the
validity of the allegations. The complexity of the law and of various
factual situations surrounding discrimination make an employee's
correct assessment of the merits of his claim difficult in all but the
most egregious instances of discrimination: that task is reserved
to the EEOC. To condition the complainant's protection on the accuracy of his claim would emasculate the section's safeguard. This
principle was recognized by the Court of Appeals for the Fifth Circuit in Pettway v. American Cast Iron Pipe Co.4 4 In Pettway a longtime black employee of the defendant filed charges of discrimination
on his own behalf and assisted other employees in filing similar
charges. While the complainant's charge was pending he was suspended from work for two weeks, allegedly because of an altercation
with a white employee. He then filed another charge, contending that
he was suspended because of his race. Although the EEOC dismissed
both charges, it advised the employee that he could submit additional
information and seek reconsideration of the Commission's decision.
The employee thereafter wrote a letter to the EEOC's chairman
stating his objections to the decision and requesting further investiCommission. Although an artfully drawn charge probably will receive more
thorough consideration than an inelegant one, the degree of erudition displayed
by the charging party should not affect the protection from reprisal accorded the
two charges. In fact, one commentator has argued that the employee's mere intention to file a charge should be protected because § 704 (a) encourages employees
to act upon their beliefs and to use an appropriate vehicle for redress. Spurlock,
supra note 36, at 466. Such a conclusion is logical, at least when the employee's
intent is manifested in a writing to the EEOC.
44. 411 F.2d 998 (5th Cir. 1969).
1977]
EMPLOYEE OPPOSITION
gation. The letter suggested that the employer bribed the EEOC employee who had investigated his case.4 5 The Commission treated the
letter as a valid petition for reconsideration. Once informed of this
allegation the employer discharged the complainant, maintaining that
the statements were false and malicious. The court of appeals accepted the trial court's finding that, although no evidence supported
the bribery charge, no proof had demonstrated that the employee's
allegation was motivated by malice.4 6 The court concluded that the
complainant was protected by section 704 (a) :
There can be no doubt about the purpose of § 704 (a). In
unmistakable language it is to protect the employee who
utilizes the tools provided by Congress to protect his rights.
The Act will be frustrated if the employer may unilaterally
determine the truth
or falsity of the charges and take inde47
pendent action.
The court indicated that this result was warranted by the nature of
Title VII's enforcement machinery: the EEOC was "an administra45. The letter stated: "[W]e believe somebody, some how got to Mr. Holliway,
who investigated the case. We don't know what was done or offered him, but we
do know it had to have been something, otherwise, your decision would not have
been so far off base." Id. at 1002 n.5.
46. Id. at 1004. Assessing the degree of protection the court would have extended to malicious charges is difficult. Analogous precedent indicated that §
8(a) (4) of the NLRA, 29 U.S.C. § 158(a) (4) (1970), did not protect from
employer retaliation employees who filed maliciously false charges before the
NLRB. 411 F.2d at 1006 n.19. See, e.g., Socony Mobil Oil Co. v. NLRB, 357 F.2d
662 (2d Cir. 1966) (per curiam); NLRB v. Coca-Cola Bottling Co., 333 F.2d 181
(7th Cir. 1964). The court in Pettway rejected the applicability of these cases,
noting that Title VII's language is broader than the NLRA's and that the
differences between the two acts probably outnumbered their similarities. 411
F.2d at 1006. The language of both statutes, however, speaks of protecting employees who have made charges, without making reference to the petitions'
contents. Moreover, the Supreme Court frequently has relied on NLRA precedent
when fashioning remedies under Title VII. See, e.g., International Bhd. of
Teamsters v. United States, 431 U.S. 324, 366 (1977); Franks Transp. Co. v.
Bowman, 424 U.S. 747, 769 (1976) ; Albemarle Paper Co. v. Moody, 422 U.S. 405,
419 (1975). General differences between the two statutes, therefore, do not
mandate different results in cases of malicious charges. No valid purpose is
served in protecting malicious charges, and a denial of protection to such accusations should not discourage the filing of charges by employees who genuinely feel
themselves to be aggrieved.
47. 411 F.2d at 1004-05. The Fifth Circuit recognized that invalid charges may
damage important interests of the employer, including his reputation. Id. at 1007.
It determined, however, that several procedural safeguards provide sufficient
protection for the employer. Id. For example, the Act and regulations impose
sanctions against disclosure by EEOC of personnel information revealed in
Commission proceedings, 42 U.S.C. § 2000e-8(e) (1970); 29 C.F.R. §§ 1601.20,
WILLIAM AND MARY LAW REVIEW
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tive agency without the power of enforcement." 48 Thus, it noted that
the EEOC had no authority to issue orders, compel enforcement, or
enter the litigation between the parties.4 9 The suit, said the court, was
between private parties, and the filing of charges by an aggrieved
party was essential to the EEOC's administration of the Act.50
1601.24 (1976), and reported EEOC decisions do not identify the parties by
name. Id. Moreover, although the extensive protection provided for a person
filing charges under § 704(a) may create some inconvenience for employers,
Congress determined that effectuation of the goals of Title VII might necessitate
imposition of some burdens on businesses. Thus, the Act requires all persons or
organizations subject to it to maintain and preserve records of their employment
practices and to file them with the EEOC. See 42 U.S.C. § 2000e-8(c) (Supp. III
1973).
48. 411 F.2d at 1005.
49. Id. The EEOC's enforcement powers are more substantial now than when
Pettway was decided. If a charge is properly filed, the EEOC must investigate to
determine whether the allegation is supported by "reasonable cause." If no such
support exists the Commission must dismiss the petition. 42 U.S.C. § 2000e-5 (b)
(Supp. III 1973). The complainant may file an action in his own name in the
district court after the EEOC either dismisses his complaint or has had jurisdiction over the charge for 180 days. Id. at § 2000e-5(f) (1). If the Commission
determines that reasonable cause exists to believe that discrimination occurred,
it must "endeavor to eliminate any such alleged unlawful employment practice by
informal methods of conference, conciliation, and persuasion." Id. at § 2000e-5 (b).
If this process fails, the EEOC may bring an action against the respondent in
district court, in which the complainant may intervene. Id. at § 2000e-5 (f) (1).
The EEOC believes that the conciliation process "receives leverage" from the
reasonable cause requirement by providing "support to the conciliator in his
negotiations with the respondent." ENFORCEMENT EFFORT, supra note 2, at 326.
Despite this belief, in fiscal year 1975 the Commission achieved successful conciliation in only 5,983 of 11,992 attempts. 10 EEOC ANN. REP. 34, Table 4
(1976). Moreover, the EEOC's regulations encourage settlement attempts after
preliminary investigations but before the issuance of a reasonable cause determination. See 29 C.F.R. § 1601.19(a) (1976). Apparently, the threat of a suit by
the Commission in the event of unsuccessful conciliation efforts is too minimal
to affect ordinary settlement discussions. In fiscal year 1975 the Commission filed
only 180 such suits. 10 EEOC ANN. REP. 8 (1976). Thus, for most petitioners
the EEOC provides little more than an effort at mediating the dispute before the
complainant can bring an individual suit in a district court.
A final impediment to the Commission's ability to pursue petitioners' complaints
effectively is the backlog of cases on the EEOC's docket. From 1970 to 1975, the
number of cases pending before the EEOC increased from 20,352 to 106,700. 10
EEOC ANN. REP. 33, at Chart III (1976). Parties consequently suffer two- or
three-year delays before conciliation can be attempted. H.R. REP. No. 238, 92d
Cong., 2d Sess. 12 (1972). These delays make opposition activities appear attractive because they may promote a speedier termination of an employer's discriminatory conduct.
50. 411 F.2d at 1005.
1977]
EMPLOYEE OPPOSITION
Although the 1972 amendments to the Act 51 have increased the
Commission's powers to issue and enforce orders in the course of its
investigations, 52 to seek temporary or preliminary relief in the district courts pending its disposition of charges,5 3 and to file suit,54 the
considerations underlying the Fifth Circuit's decision in Pettway
remain valid. As the EEOC noted in 1974, "the main burden of enforcing the Act continues to rest with aggrieved individuals who file
charges." 55
Another prerequisite to effective enforcement of the Act is a prohibition of employer or union interference with employee cooperation
in EEOC investigations. In United States v. City of Milwaukee,56 the
city's police department attempted to frustrate a Justice Department
investigation of its employment practices. It announced that employees who participated in interviews with Justice Department investigators would be subject to charges of violating a rule prohibiting
employees from discussing the department's official business with
"anyone except those for whom it is intended." 57 The court enjoined
51. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, §§ 2,
8 (a)-8 (f), 4, 5, 6, 7, 8 (g), 10, 11, 13, 86 Stat. 103 (amending 42 U.S.C. §§ 2000e
to 2000e-6, 2000e-8 to 9, 13 to 14, 16 to 17 (Supp. III 1973)).
52. See 42 U.S.C. § 2000e-9 (Supp. III 1973), which specifies that the EEOC's
hearings and investigations shall be conducted pursuant to § 11 of the National
Labor Relations Act, 29 U.S.C. § 161 (1970).
53. See 42 U.S.C. § 2000e-5(f) (2) (Supp. III 1973).
54. See id. § 200Oe-5(f) (1), 6(c).
55. EEOC Dec. No. 74-77, 2 EMPL. PRAC. GUIDE (CCH) ff 6417, at 4117 (1974).
See also East v. Romine, Inc., 518 F.2d 332, 341 n.8 (5th Cir. 1975) ; G. GINSBURG,
supra note 2, at 232.
56. 390 F. Supp. 1126 (E.D. Wis. 1975).
57. Id. at 1127. See also EEOC Dec. No. 74121, 2 EMPL. PRAc. GUIDE (CCH)
f 6435 (1974). In that decision an employer under investigation by the EEOC
held a meeting with his workers and instructed them to provide management with
a statement both of the information EEOC investigators sought during interviews and of the employees' answers. In addition, the employees were told "not
to worry about losing their jobs if they cooperated with the Commission's investigation." Id. at 4161. The Commission found reasonable cause to believe that the
employer violated § 704(a), holding that "the mere mention of discharge by
[the employer] in the context of its employees cooperating with the investigation amounts to a violation of Sec. 704(a)." Id. at 4262 (footnote omitted). In
EEOC Dec. No. 71-2312, [1973] EEOC DEC. (CCH) f 6248 (1973), an employee
was discharged for disobeying her supervisor's directions to assure the EEOC
that her employer did not engage in race discrimination. The Commission determined that the discharge violated § 704(a). A similar construction has been
accorded to § 8(a) (4) of the NLRA. 29 U.S.C. § 158(a) (4) (1970). Although
§ 8(a) (4) by its terms protects employees who have "filed charges or given
testimony" in proceedings under the Act, the Supreme Court has held that it
covers an employee who has made statements to NLRB representatives, but who
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
the police department from enforcing the rule, reasoning that the
statutory enforcement process, to function effectively, had to be insulated from interference in all its phases. The right to file a charge
is meaningless unless accompanied by safeguards assuring that the
complaint will receive due consideration and a complete investigation.
If employers under investigation for their employment practices can
order their employees either not to cooperate with that investigation
or to respond to investigators' inquiries by reciting the management's
official position, the strain placed on the integrity of the enforcement
process is no less severe than in a situation involving reprisal for
filing a charge. 5s
EMPLOYEE OPPOSITION UNDER SECTION
704 (a)
The opposition clause of section 704(a) protects various employee
activities beyond the scope of the enforcement machinery established
by Title VII. Employee opposition to unlawful employment activities
can take many forms, ranging from the mere questioning of an
employer regarding his employment practices to concerted activity
designed to pressure the employer into altering his practices. Subsequent to Pettway, the EEOC's efforts have been directed toward
expanding the scope of the opposition clause to include a wide variety
of employee activities, including economic pressures. Viewing section
704 (a) enforcement as one of its highest priorities, the Commission
provides preferential treatment in the administrative process to
claims of reprisal.5 9 According to the EEOC, section 704 (a) prohas neither filed charges nor testified at a formal hearing. See NLRB v. Scrivener,
405 U.S. 117 (1972).
58. Protection of charges and participation in enforcement proceedings is
provided not only when the EEOC is involved but also when the charge is filed
with or the investigation is conducted by a state or local fair employment practices agency. See EEOC v. Kallir, Phillips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y.
1975). When the discriminatory practice occurs in a state or locality that has its
own fair employment laws, employees seeking relief must file charges with the
appropriate administering agency responsible. See 42 U.S.C. § 2000e-5 (b) (1970).
The EEOC may not investigate the complaint until the state agency has had at
least 60 days to act thereon. Id. § 2000e-5 (c). Moreover, if a charge nevertheless
is filed first with the EEOC, the Commission must refer it to the appropriate
state agency. Id. This scheme reflects a strong congressional preference for local
or state action. See 110 CONG. REc. 12725 (1964) (remarks of Sen. Humphrey) ;
110 CONG. REc. 13087 (1964) (remarks of Sen. Dirksen). When a charge initially
is filed with the state or local agency, it must be filed with the EEOC either
no later than 300 days after the occurrence of the discriminatory act or within
30 days after the Commission receives notice that the state or local agency has
terminated its proceedings, whichever is later. Id. § 2000e-5 (e) (Supp. III 1973).
59. B. ScnmLi & P. GROSSMAN, supra note 12, at 425 n.26.
19771
EMPLOYEE OPPOSITION
scribes employer or union actions that tend to chill employees' willingness to oppose discrimination." Thus, if the form of an employee's
opposition "is not so destructive of important social or business
interests as to outweigh the objectives of Section 704 (a) which are
served by protecting it . . . the opposition will normally be held to
be protected." 61
In applying this test, the EEOC rarely finds opposition to be
destructive of social or business interests. 2 The Commission's inquiry, moreover, may focus on the wrong issues. ": A class action suit
60. See, e.g., EEOC Dec. No. 71-2328, [1973] EEOC DEC. (CCH) 116279
(1971). The Commission's Compliance Manual states: "Every instance of unremedied retaliation against persons who engage in Section 704(a) opposition
* * * has a long term chilling effect upon the willingness of those persons and
others to actively oppose Title VII discrimination." EEOC COMPL. MAN. (CCH) §
491.2, at 5201, ff 6902 (1975). This view is endorsed by Spurlock, supra note 36, at
481-82, who maintains that the possibility of a "chilling effect" should promote an
expansive reading of § 704(a) opposition.
61. EEOC COMPL. MAN. (CCH) § 491.5, at 5203, ff 6905 (1975).
62. In EEOC Dec. No. 71-1804, [1973] EEOC DEC. (CCH) ff 6264 (1971), the
EEOC upheld a § 704(a) complaint by an employee who picketed his employer's
plant to protest allegedly discriminatory practices. In EEOC Dec. No. 74-56,
2 EMPL. PRAC. GUIDE (CCH) 116438 (1973), the EEOC determined that an
employee walk-out was a protected opposition activity, concluding that "it was
not so destructive of [the employer's] interest as to exceed the bounds of permissible protest." Id. at 4168. Similarly, in EEOC Dec. No. 72-1114, [1973]
EEOC DEC. (CCH) ff 6347 (1972), the EEOC held that an employee who,
"whether erroneously or not, believed that his job security could be affected" by
his supervisor's religion-oriented statements, engaged in a protected activity
when he attempted to'organize an employee walk-out. Id. at 4629. These decisions
demonstate that the Commission's application of the business interests test deprives it of any meaning. Apparently, very few activities are so destructive of
the employer's legitimate business interests as to be rendered unprotected.
Compare EEOC Dec. No. 71-1850, [1973] EEOC DEc. (CCH)
6245 (1971),
with Doe v. AFL-CIO, Dep't of Organization, 405 F. Supp. 389 (N.D. Ga. 1975),
aff'd mem., 537 F.2d 1141 (5th Cir. 1976), cert. denied, 429 U.S. 1102 (1977).
63. Similar tests have been proposed by others. Spurlock, supra note 36, would
protect all opposition conduct except that which the employer proves to have been
"deliberately destructive of the employment relationship and [to have] significantly compromised the rights of others." Id. at 491. Similarly, in Extra-Union
Opposition, supra note 39, the author argues that opposition always should be
protected except when the employer can "demonstrate actual or imminent serious
harm to himself, to the collective bargaining relationship, or to labor peace." Id.
at 330. Both commentators proceed from the premise that opposition activity is
important or "fundamental" to the elimination of discrimination. The best
available means for achieving that goal, however, is the legal process. Moreover,
the perniciousness of discrimination does not justify protecting from employer
reaction virtually every activity purporting to oppose it. Thus, the establishment
of a picket line in front of a business that the picketers erroneously have accused
of engaging in discrimination does not further the goals of Title VII. If the
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
may be detrimental to the employer's interests, especially if it results
in the massive restructuring of his business or a large back-pay
award; yet, the employee who files the suit clearly is protected. A
picket line or a demonstration against a business's alleged discrimination may not result in measureable or identifiable monetary harm to
the employer, particularly if the public's response is apathetic, but the
coercion implicit in such agitation does threaten the employer's control of his business and may cause other intangible harm to the
business. The EEOC position appears to deprive the actions of protection only if they cause an actual business loss. The protection afforded to opposition, however, should not be contingent on the success
or failure of activities with the same underlying motives. Moreover,
the employer should not be deprived of his ordinary prerogatives if
picketing employees avoid the statutory process, which offers the
best means of determining whether discrimination has occurred,
and opt instead to pursue a form of economic coercion. Such employee
opposition does not advance Title VII's goal of peacefully resolving
discrimination claims. Instead, it represents a possibly erroneous unilateral determination by employees that their discrimination charges
are valid, similar to the employer's unilateral determination of the
invalidity of his employee's charges that was condemned by the court
in Pettway. Although both parties should be encouraged to resolve
disagreements to their mutual satisfaction, neither should be permitted to substitute its judgment for that of a qualified tribunal
created for the purpose of resolving discrimination claims.
Given that one of section 704(a)'s major purposes was to guarantee the integrity of the statutory machinery, activities incompatible
with its effective operation merit no protection. The policies underlying Title VII, however, are promoted through the authorization
and protection of a wide variety of noncoercive opposition activities.
Initially, section 704 (a) shelters those actions promoting private
resolution of employment discrimination complaints. Employers thus
should be prevented from retaliating against employees who question
their company's employment practices. Informal settlement is a
prominent theme of Title VII.6 4 The EEOC's enormous backlog of
employer was precluded from discharging the picketing employees unless he
could prove that the activity deliberately was destructive of the employment
relationship, he would be deprived of a freedom for no apparent purpose. Any
curtailment of employer freedoms should be reasonably calculated to further the
goals of Title VII.
64. See 42 U.S.C. § 2000e-5(b) (Supp. III 1973). See also H.R. REP. No. 914,
88th Cong., 1st Sess. (1963), reprinted in LEGIsLATIvE HISTORY, supra note 15,
which states that Title VII's purpose is to "eliminate, through the utilization of
19771
EMPLOYEE OPPOSITION
cases often compels the agency to treat expeditiously only the more
serious complaints and to leave others on its docket for two or three
years.65 Consequently, the EEOC generally seeks to resolve most disputes through informal conciliation of the parties, frequently even
before it determines whether a complaint is supported by reasonable
cause. 66 Because informal preinvestigation conciliation has become
a principal function of the EEOC, parties should be encouraged to
resolve their disputes through private, noncoerced negotiations. Such
efforts will produce satisfactory settlements in at least a moderate
number of situations, relieving both employer and employee of the
burdens associated with litigation. Private negotiation thus complements the statutory enforcement mechanism without infringing on
its integrity.0 1 In contrast, if an employee may confront his employer
only at the risk of reprisal, complainants will tend to bring grievances
directly to the EEOC, thus further increasing the Commission's Title
VII administrative burdens.
Other opposition activities that complement and promote access
to Title VII's enforcement process include the investigatory efforts
of employees who contemplate filing discrimination charges against
their employer. Although a discharged employee or rejected applicant
may file charges on the basis of little more than suspicion of discrimination, an incumbent employee usually will need additional information before presenting a complaint to either his employer or
the EEOC. An incumbent employee ordinarily desires to maintain a
cordial employment relationship and to avoid a reputation as a
troublemaker; therefore, he will not want to file frivolous charges. A
generalized suspicion that his employer is committing an unlawful
employment practice usually will be insufficient to advance the employee's purposes, regardless of whether it supports a valid charge.
A complaint not supported by concrete evidence undoubtedly will
receive less thorough consideration than one supported by factual
formal and informal remedial procedures, discrimination in employment." Id. at
2026.
65. See note 49 supra.
66. 29 C.F.R. § 1601.19(a) (1976).
67. See Hearth v. Metropolitan Transit Comm'n, 436 F. Supp. 685 (D. Minn.
1977), in which the court stated: "The resolution of [Title VIII charges without
government prodding should be encouraged." Id. at 689. This position is analogous
to that expressed in recent labor relations decisions, which have emphasized
that a peaceful resolution of disputes through an arbitral or a legal forum must
be sought prior to a resort to self-help. See, e.g., United Steelworkers v. NLRB,
530 F.2d 266 (3d Cir.), cert. denied, 429 U.S. 834 (1976). See generally Note,
Dow Chemical: Restricting the Availability of Self-Help Measures in Labor
Disputes, 77 COLUM. L. REv. 105 (1977).
WILLIAM AND MARY LAW REVIEW
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detail or documentation. The employee may need evidence indicating,
for example, that he was passed over for promotion in favor of
another or that a comparable employee enjoys higher wages or better
employment conditions. To obtain such information, the would-be
complainant may need to consult other employees and to divulge his
suspicions to them. He also may require their support in compiling
the factual basis for making a reasonable presentation of a grievance
to the employer or to the Commission. Such activities are examples
of employee opposition that, unless carried out in an unnecessarily
disruptive manner, should be protected by section 704 (a). Their purpose is to facilitate either a fruitful discussion with the employer
or a closely focused investigation by the EEOC.
Protected Opposition Activities
Although the EEOC has construed broadly the scope of opposition
activities protected by section 704 (a), the federal courts have tended
toward a more restrictive view and have relied on more objective
criteria for determining whether particular activities warrant protection under the statute. One judicial test has conditioned protection
on a finding that the accusation of discrimination actually is valid.
In EEOC v. C & D Sportswear Corp.,8 a black employee was suspended from work pending an investigation of an altercation between
the employee and the company's president. When the employee complained during the company's subsequent investigation of the incident
that her suspension had been motivated by racism, she was discharged. The EEOC found this allegation to be unsubstantiated but
held that her conduct nonetheless was protected by section 704 (a).69
The district court agreed that her claim was "unfounded," but held
that "where accusations are made outside the procedures set forth by
Congress [they are] made at the accuser's peril. In order to be protected, it must be established that the accusation is well founded." 70
The court reasoned that unfounded accusations should not be protected because they were likely to result in "racial discord, disruption,
and disharmony."
71
68. 398 F. Supp. 300 (M.D. Ga. 1975).
69. Id. at 305.
70. Id. at 306. Cf. Winsey v. Pace College, 394 F. Supp. 1324 (S.D.N.Y. 1975)
(defendant who became subject to Title VII subsequent to employee's opposition
conduct not prohibited from retaliating for that conduct). But see Hearth v.
Metropolitan Transit Comm'n, 436 F. Supp. 685 (D. Minn. 1977)
rejecting C & D test).
71. 398 F. Supp. at 305.
(explicitly
1977]
EMPLOYEE OPPOSITION
Although this "validity of the claim" test provides an objective
criterion for determining whether a particular activity should be protected, its application discourages both valid and invalid employee
discrimination complaints, a result at variance with the purpose of
section 704 (a)'s opposition clause. No evidence has indicated that
more racial discord results from unfounded complaints than from
those that are substantiated. The mode of opposition probably will
determine the degree of discord. More significantly, employees rarely
possess sufficient factual or legal information, prior to a formal investigation, to know with certainty that their employer engages in
discriminatory practices. As Professor Meltzer has stated:
[I]t is likely that reasonable, but erroneous, perceptions of
racial discrimination will continue to exist in numerous employment situations. Misperceptions of this kind are to be
expected so long as any racial group is less successful than
others and so long as pervasive suspicion of employer
"racism" persists. In addition, the protean nature of antidiscrimination law is likely to contribute to reasonable
but
2
erroneous perceptions of racial discrimination.
Because of this difficulty in determining the validity of discrimination grievances, an employee who reasonably and in good faith
believes that he is the subject of discriminatory treatment should
be able to present his accusations to his employer without risking
reprisal. Protecting opposition of this nature is consonant with the
purposes of the Act. However inelegant or bereft of social niceties
his accusations might be, the employee's actions under such circumstances give the employer an opportunity to rebut the assertions or
to resolve the problem informally. Absent some protection for this
opposition employees either would take their grievances directly to
the EEOC, thus creating additional burdens for the agency, or would
decide not to assert their rights at all, thus depriving the Commission
of the employee participation fundamental to the success of Title
73
VII's enforcement system.
A second test applied by the courts withholds protection from opposition activities that have a "disruptive" effect on the employer's
business. 4 In Green v. McDonnell Douglas Corp., 5 the defendant
72. DiscriminationRemedies, supra note 17, at 33 (footnote omitted).
73. Other courts have held that employees are protected by section 704(a)
when .they complain to management of discrimination. See, e.g., Sherril v. J.P.
Stevens Co., 410 F. Supp. 770, 784 (W.D.N.C. 1975), aff'd, 551 F.2d 308 (4th Cir.
1977). See also EEOC Dec. No. YCH9-140, [1973] EEOC DEC. (CCH) 116075
(1969).
74. See, e.g., Garrett v. Mobil Oil Corp., 531 F.2d 892 (8th Cir. 1976).
75. 463 F.2d 337 (8th Cir. 1972), vacated on other grounds, 411 U.S. 792
(1973).
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
corporation discharged a black employee for participating in an
illegal "stall-in" of automobiles on an access road to its plant. The
Court of Appeals for the Eighth Circuit held that the employee's
activity was not protected by section 704(a) .76 On appeal of the
court's rejection of a companion claim of racial discrimination the
Supreme Court noted its agreement with the Eighth Circuit's holding,
stating that "[n] othing in Title VII compels an employer to absolve
and rehire one who has engaged in such deliberate, unlawful activity
against it." 77 The employer could be ordered to rehire the plaintiff
only if the corporation had used his actions as a pretext for a dismissal that actually was motivated by the employee's opposition to
discriminatory practices.1 8
Disruptiveness need not be illegal to justify reprisal, but in such
situations the employee's actions generally are inconsistent with the
orderly conciliation process provided by Title VII. In Ammons v. Zia
Co., 79 the Court of Appeals for the Tenth Circuit upheld the discharge
of an employee who had made thirty-two complaints to management,
fourteen within a fifteen month period, alleging sex discrimination
in pay. The employer admitted that he had discharged the employee
because of her complaints, but insisted that the complaints themselves, not their substantive allegations of sex discrimination, had
motivated the employee's discharge.80 Although the employee was
entitled to present complaints to management, she should have sought
legal remedies rather than continue informal pressures once her
initial activity failed to resolve the dispute. Further complaints based
on the original grievance may indicate that the employee's motive
76. 463 F.2d at 341.
77. McDonnell Douglas Corp. v. Green, 441 U.S. 792, 803 (1973) (footnote
omitted).
78. Id. at 804. According to Professor Meltzer, Green "makes it clear that the
broad provisions of section 704 (a) . . . must be narrowed by taking account of
the nature of the 'opposed' practices and their impact on legitimate competing
interests-including, presumably, orderly bargaining and dispute settlement."
DiscriminationRemedies, supra note 17, at 30-31 n.148. The Court stressed the
illegality of the plaintiff's conduct and carefully distinguished between illegal
activities and "legitimate civil rights activities," thus intimating that the latter
would be protected. 411 U.S. at 797, 804. The Eighth Circuit also suggested
that lawful protest would be protected. 463 F.2d at 341. The legality of the protest, however, should not necessarily insulate it from employer reprisal. Conduct
that is lawful under the first amendment nevertheless may contravene the goals
and procedures of Title VII. For example, although the establishment of a picket
line charging the employer with racism may be protected constitutionally from
interferene by the state, it does not merit protection from employer reprisal.
79. 448 F.2d 117 (10th Cir. 1971).
80. Id. at 120.
1977]
EMPLOYEE OPPOSITION
is merely harassment of management rather than a search for a good
faith settlement of his grievance.
These cases indicate that if the employee's activity is illegal or is
motivated by bad faith, such as a desire to harass the employer into
submission to the employee's demands, protection should be unavailable under section 704 (a). In such instances, discrimination charges
may be no more than a subterfuge for the disruptive conduct itself
or a pretext for voicing general dissatisfaction with the workplace,
matters not covered specifically by Title VII. These activities should
be unprotected, not because of the actions' disruptive effect in and
of itself but because of the employee's improper motive.
Although unnecessary disruptiveness, which betrays an intent to
coerce the employer, is not worthy of protection, mere disruptiveness
should not be determinative of the propriety of the employee's conduct because it often may be the by-product of activities entirely consistent with the purposes and procedures of Title VII. In EEOC v.
Kallir,Phillips,Ross, Inc.,"' after discovering that a male counterpart
in the firm annually earned $7000 more than she, a female employee
complained to the defendant firm and also advised a co-worker to
register a similar grievance. Dissatisfied with the employer's delays
in responding to her claim, the employee filed charges against the
firm with the local fair employment practices agency. The agency
thereafter requested that she provide an objective description of her
position at the firm. Believing that this information could not be obtained from her employer, the complainant secured a letter from one
of the firm's clients on whose account she had worked. When the firm
learned that she had involved a client in her action, it suspended the
employee. The court, however, noting that the complainant had asked
the client to keep the matter confidential, rejected the employer's
justification for the suspension. The employee's actions were regarded
as assistance to a Title VII investigation, and hence protected. Also
protected was the employee's advice that her co-worker file charges
against the firm: section 704 (a) "necessarily protects an employee
from retaliation for merely advising fellow employees of their rights
under the law."
82
Similar reasoning
prior to the filing of
ruptive effect. Thus,
when he attempts to
justifies protecting certain employee activities
a formal complaint, despite their collaterally disan employee should be protected from retaliation
gather evidence in support of his allegations be-
81. 401 F. Supp. 66 (S.D.N.Y. 1975).
82. Id. at 71. See also EEOC Dec. No. 71-1544, [1973] EEOC DEC. (CCII)
6229 (1971).
f
WILLIAM AND MARY LAW REVIEW
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fore approaching his employer with his complaint 83 or when he seeks
the assistance of outside parties because he lacks either the confidence
8 4
or the necessary understanding of the law to proceed unassisted.
As indicated in Kallir, however, "an employee's conduct in gathering
or attempting to gather evidence to support his charge may be so
excessive and so deliberately calculated to inflict needless economic
hardship on the employer" as to lose its protected status.8 In such
instances, however, the basis for the denial of protection should be
the employee's improper motive and not the resulting hardships. The
disruption caused by an activity is evidence of the employee's improper motive but it cannot be determinative.
Protection also has been extended to various activities that, although related only indirectly to Title VII's enforcement procedures,
advance the statutory goals, even when such activities may disrupt
the employer's ordinary business practices. s6 For example, section
704 (a) properly protects employees who are not the subjects of discrimination but who nevertheless attempt to discuss with management perceived discriminatory practices. Employees engaging in such
activities attempt to correct Title VII violations through private
negotiation and settlement. Similar considerations have led the EEOC
to prohibit retaliation against employees who advise blacks to apply
for a job with the employer 87 or against applicants who question the
83. See, e.g., Johnson v. Lillie Rubin Affiliates, Inc., 5 Empl. Prac. Dec. .f 8542
(M.D. Tenn. 1973). The limits of this protection are suggested by Hochstadt v.
Worcester Foundation for Experimental Biology, 545 F.2d 222 (1st Cir. 1976).
The plaintiff in Hochstadt invited a newspaper reporter to examine her employer's confidential salary records and suggested that an officer of the Association of Women in Science conduct a covert affirmative action survey while ostensibly attending a scientific seminar at her laboratory. She also engaged in
numerous activities that prevented others from working with her. The court
upheld her discharge against a § 704 (a) attack. Id. at 234.
84. See, e.g., Johnson v. Lillie Rubin Affiliates, Inc., 5 Empl. Prac. Dec. 8542
(M.D. Tenn. 1973) (black employee consulted NAACP representatives after conferring with employer and failing to resolve dispute); EEOC Dec. No. YCH9140, [1973] EEOC DEC. (CCH)
6075 (1969) (employee's attorney sent letter
to employer complaining that employee's bonus had been withheld because of his
race). Cf. Cole v. Choctaw County Bd. of Educ., 471 F.2d 777 (5th Cir.) (per
curiam), cert. denied, 411 U.S. 948 (1973) (employee reinstated after dismissal
in violation of first amendment).
85. 401 F. Supp. at 71.
86. But see Novotny v. Great Am. Fed. Say. & Loan Ass'n, 430 F. Supp. 227
(W.D. Pa. 1977), in which the court held that employees are protected only if
they "made a charge, testified, assisted, or participated" in Title VII proceedings.
Id. at 230. The court's holding would reduce § 704(a)'s opposition clause to a
nullity.
87. EEOC Dec. No. 71-345, [1973] EEOC DEC. (CCH)
6167 (1970).
19771
EMPLOYEE OPPOSITION
employer about the company's employment practices. 8 The decisive
factor in these cases is that the employee's action is designed to
exhort the employer to comply with the legal requirements of Title
VII, and therefore is consistent with its purposes.
An employee's disregard of a supervisor's order may be a protected
activity even though the noncompliance interferes with the employer's business. In such situations, the nature of the instruction
will determine whether the employee may disregard it. An employee
generally should not be permitted to determine unilaterally that he is
the object of employment discrimination; therefore, the worker's
refusal to obey an order to perform assigned tasks should not be
protected. 9 If the instruction was designed to frustrate an employee's
attempts to present a charge of discrimination to management or to
third parties, then the complainant's noncompliance should be protected. Thus, the court's denial of section 704 (a) protection in Garret
v. Mobil Oil Corp 0° was ill-reasoned. In that case an employee was
discharged for disobeying her supervisor's order not to present her
discrimination complaint directly to management. The plaintiff contended that her supervisor previously had displayed insensitivity to
her grievance, which necessitated meeting with other management
officials to discuss the problem. The court upheld the discharge,
reasoning that the plaintiff's pursuit of her complaint, in contravention of her supervisor's order, was a disruptive act not entitled to
section 704(a) protection.9 1 Clearly, the court disregarded the need
of employees to present their complaints to management to assess
both the merits of the grievances and the necessity of invoking the
enforcement machinery of Title VII.
Most challenges to an employer's practices will create some disruption in the management of his business. In determining whether an
employee's actions are entitled to protection under section 704(a),
however, their disruptive effect is relevant only insofar as it discloses the employee's motive in pursuing a particular course of action.
The disruptive effect may disclose whether an employee's aim was
to secure compliance with Title VII through the orderly means of
persuasion or to coerce the employer into acceding to the employee's
unsubstantiated demands. If the principal purpose of the activity is
to coerce the employer's acquiescence through the threat of economic
injury to his business, through harassment, or through other forms
88. EEOC Dec. No. 72-0703, [1973] EEOC DEC. (CCH) f 6328 (1972).
89. Christian v. General Motors Corp., 341 F. Supp. 1207, 1214 (E.D. Mo.
1972), aff'd me=., 475 F.2d 1407 (8th Cir. 1973).
90. 531 F.2d 892 (8th Cir. 1976).
91. Id. at 895-96.
WILLIAM AND MARY LAW REVIEW
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of obstruction, the activity merits no protection. If, on the other
hand, the disruptive effect is merely incidental to the employee's good
faith attempt to present a complaint in an orderly manner to his
employer or the appropriate agency, the activity should be protected.
A motive test obviously is more cumbersome than one focusing
solely on the conduct's disruptive effects. Even if protection ultimately is predicated on some other criterion, however, an initial
determination always must disclose that the employee's actual motive
was to oppose some employment practice that he believed to be discriminatory, rather than to use a specious claim of discrimination
as a pretext for unruly behavior. A picketer or a striker would have
difficulty proving that he intended to reach a noncoerced agreement
with his employer. In contrast, the incidental disruptive effects of
employee conduct that are wholly compatible with Title VII's enforcement scheme would not be determinative of the employee's improper motive. An employee validly might cause some disruption in
bypassing his supervisor to discuss a discrimination grievance with
management, in soliciting the aid of his fellow workers in gathering
evidence to substantiate his claim, or simply in presenting his claim
to management. Similarly, an outburst of anger by the employee
during his presentation of a sensitive discrimination grievance should
not defeat his entitlement to protection. Surely these forms of noncoercive conduct merit protection if the employee's aim was to secure
a fair settlement of his good faith grievance without exerting undue
pressure on the employer.
The Scope of Protection Under Section 704(a)
A determination that an employee engaged in protected conduct is
not a guarantee of job security; rather, it prohibits the employer
from discriminating against that person merely for participating in
those activities. Consequently, an employee who hopes to make a successful charge under section 704(a) must demonstrate that his
participation in protected activities prompted the employer's retaliation.9 2 If the employer acted for legally permissible reasons, independent of the employee's opposition activities, his conduct does not
violate section 704(a). Similarly, unlawful retaliation cannot be
proved when the employer was unaware of an employee's participation in protected activities.9
92. See, e.g., East v. Romine, Inc., 518 F.2d 332, 338 (5th Cir. 1975) ; Christian
v. General Motors Corp., 341 F. Supp. 1207 (E.D. Mo. 1972), aff'd mem., 475
F.2d 1407 (8th Cir. 1973).
93. See Wilson v. Woodward Iron Co., 362 F. Supp. 886 (N.D. Ala. 1973);
EMPLOYEE OPPOSITION
1977]
243
The employer usually will attempt to justify reprisal against an
employee by proving either that the employee's conduct was disruptive or that the alleged retaliation was prompted by factors that were
independent of the employee's opposition. An employer may introduce
an employee's work record as evidence, contending that the performance did not meet the objective qualifications for the position. Title
VII, however, prohibits employers from making "distinctions or
differences in the treatment of employees" in any manner. 4 Thus,
the employee may counter the employer's defense by proving that
employees with similar records did not suffer the same consequences
for their actions 5 The worker also could demonstrate that he was
subjected to an unusual degree of scrutiny because of his opposition
activities. An attempted justification by the company that the employee had absented himself from work without excuse, for example,
would be invalid if absence records were maintained in his file but
not in those of other employees.9 6 In addition, subjecting to surveillance an employee who participated in protected activities would
violate the Act unless other, nonparticipating employees were treated
Terrell v. Feldstein Co., 5 Empl. Prac. Dec. f1 8039 (M.D. Ala. 1972), aff'd per
curiam, 468 F.2d 910 (5th Cir. 1972). Spurlock, supra note 36, argues that "an
employer who pinions his defense in such situations upon lack of notice should
beware. His claim is predicated upon the most tenuous of circumstances. He must
be able to demonstrate that it was reasonable for him to lack notice of his employee's opposition ....
."
Id. at 486. Lack of notice, however, should not be a
tenuous justification. Section 704 (a) prohibits discrimination against an employee
because he engaged in protected activities. When the company lacks notice of
the employee's conduct the required causal connection is absent, and to charge
the employer with knowledge of the employee's activities would serve no purpose
of Title VII. In such circumstances the company's actions are prompted by
purposes valid under Title VII. The reasonableness of the employer's assertion
that he lacked notice is relevant only in determining the credibility of his contention. In addition, the case law places on the plaintiff the burden of proving
that the employer's actions were motivated by the employee's participation in
protected activities, a requirement comporting with the statutory language. See,
e.g., Jeffreys v. Harris County Community Action Ass'n, 425 F. Supp. 1208 (S.D.
Tex. 1977); Tidwell v. American Oil Co., 332 F. Supp. 424 (C.D. Utah 1971).
The employer, therefore, need offer no defense for his actions unless the employee first proves that the company was aware of his involvement in protected
conduct.
94. 110 CONG. REC. 7218 (1964) (remarks of Sen. Clark).
95. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Cf. East
v. Romine, Inc., 518 F.2d 332, 339-40 (5th Cir. 1975) (suggesting that the employer must prove that the employee was not treated differently from workers
with similar records).
96. EEOC Dec. No. 71-382, [1973] EEOC DEC. (CCH) I 6202 (1970). See also
EEOC Dec. No. 71-1115, [1973] EEOC DEC. (CCH) 1[ 6201 (1971).
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
similarly 7 Consequently, any employer response that singles out the
employee engaged in opposition activities for unfavorable
treatment
98
could be vulnerable to a claim of unlawful retaliation.
The prevailing interpretation of section 704 (a) protects an employee whose participation in opposition activities provided only one
of the reasons for the employer's alleged retaliation.99 The apparent
rationale for this construction is that there is "no acceptable place in
the law for partial racial discrimination." 109 Similarly, some courts
have interpreted section 8(a) (3) of the NLRA 101 to protect employees if their participation in union activities was one of the
reasons for their discharge by an employer. 10 2 The adoption of this
construction for section 704 (a), however, ignores the essential element of causation; section 704 (a) provides relief to employees who
97. EEOC Dec. No. 70-683, [1973] EEOC DEC. (CCH)
6145 (1970). Cf.
NLRB v. Tennessee Packers, Inc., 339 F.2d 203 (6th Cir. 1964) (harassment of
employee is violation of § 8 (a) (1) and 8 (a) (3) of NLRA).
98. See, e.g., Hyland v. Kenner Products Co., 11 Empl. Prac. Dec.
10,926
(S.D. Ohio 1976) (reduction of employee's duties and responsibilities) ; McMullen
v. Warner, 12 Empl. Prac. Dec.
11,107 (D.D.C. 1976) (falsely informing
employee that funds were unavailable to reimburse him for continuing education
classes); Robinson v. Mittendorff, 13 Empl. Prac. Dec. 1 11,415 (D.D.C. 1976)
(refusing to provide employee with adequate work instructions and ordering
other workers to avoid her); EEOC Dec. No. 74-53, 2 EMPL. PRAc. GUIDE (CCH)
1 6410 (1973) (denial of preferred work assignment); Pennsylvania v. Local
Union 542, Int'l Union of Operating Engineers, 347 F. Supp. 268 (E.D. Pa. 1972)
(physical violence) ; Francis v. AT&T, 55 F.R.D. 202 (D.D.C. 1972) (surveillance
and ostracism). Compare EEOC Dec. No. 74-77, 2 EMPL. PRAC. GUIDE (CCH)
6417 (1974) (employer violated § 704(a) by filing libel complaint against
employee for statements made in formal charges to state fair employment agency
and to EEOC), with Bartucila v. Paculdo, 12 Empl. Prac. Dec.
11,153 (W.D.
Mo. 1976) (employer did not violate § 704(a) by filing libel complaint against
employee for allegations of discrimination made in memorandum to employee's
superior).
99. See, e.g., Brown v. Rollins, Inc., 397 F. Supp. 571 (W.D.N.C. 1974); Bradington v. IBM Corp., 360 F. Supp. 845, 853 (D. Md. 1973), aff'd, 492 F.2d 1240
(4th Cir. 1974); United States v. Hayes Int'l Corp., 7 Empl. Prac. Dec.
9164,
at 6873-74 (N.D. Ala. 1973), af'd, 456 F.2d 112 (5th Cir. 1975).
100. Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 350 (7th Cir. 1971)
(housing discrimination). See also Burris v. Wilkins, 544 F.2d 891 (5th Cir. 1977)
(housing discrimination) ;.Riley v. Adirondack S. School for Girls, 541 F.2d 1124
(5th Cir. 1976) (en banc) (discrimination in private school admissions).
101. 29 U.S.C. § 158(a) (3) (1970). Section 8(a) (3) provides in pertinent
part: "It shall be an unfair labor practice for an employer ... by discrimination
in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage membership in any labor organization .... .
102. See, e.g., NLRB v. George J. Roberts & Sons, Inc., 451 F.2d 941 (2d Cir.
1971); NLRB v. Gladding Keystone Corp., 435 F.2d 129 (2d Cir. 1970); NLRB
v. Barberton Plastics Prods., Inc., 354 F.2d 66 (6th Cir. 1965).
1977]
EMPLOYEE OPPOSITION
245
were the objects of discrimination because they engaged in protected
activities. If the employer would have taken the same actions for
legitimate reasons, relief should be unavailable, regardless of the
employee's participation in protected activities. The critical question
is not whether the employer derived satisfaction from discharging
or demoting an employee but whether the employee would have been
accorded identical treatment in the absence of his involvement in
10 3
protected activities.
The Supreme Court enunciated a similar test in Mt. Healthy City
School District v. Doyle, 0 4 a case involving retaliation against a
teacher who engaged in constitutionally protected activities. In Doyle
the school board refused to renew the contract of the plaintiffteacher following his involvement in a series of altercations with
school employees and students. The board cited two reasons for its
action: the plaintiff had made an obscene gesture to two girls in the
school cafeteria and had conveyed the contents of a memorandum on
teacher dress and appearance to a local radio station. In a decision
affirmed by the Sixth Circuit without opinion, 10 5 the district court
ordered that the teacher be reinstated because his communication to
the radio station, which was protected by the first amendment, had
played "a substantial part" in the board's decision.' " The Supreme
Court agreed that the communication was constitutionally protected 107 but vacated the order and remanded the case to the lower
courts, holding that the board should have had the opportunity to
prove that it would have taken the same actions in the absence of
the teacher's protected conduct.'0 The employee otherwise could be
placed "in a better position as a result of his exercise of constitutionally protected conduct than he would have occupied had he done
nothing." 109 The teacher's first amendment rights would have been
103. Cf. NLRB v. Whitfield Pickle Co., 374 F.2d 576 (5th Cir. 1967), in which
the court, for similar reasons, criticized the NLRB's practice of finding a violation of the NLRA's § 8(a) (3) whenever an employee's participation in union
activities was one of multiple reasons for his discharge:
To invoke § 8(a) (3), the anti-union motive need not be dominant
(i.e., larger in size than other motives) ; in some cases it may be so
[AIll
small as the last straw which breaks the camel's back ....
that need be shown . . . is that the employee would not have been
fired but for the anti-union animus of his employer.
Id. at 582.
104. 429 U.S. 274 (1977).
105. Doyle v. Mt. Healthy City School Dist., 529 F.2d 524 (6th Cir. 1975).
106. 429 U.S. at 283.
107. Id. at 284.
108. Id. at 287.
109. Id. at 285-86.
246
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
protected sufficiently if he were placed in no worse a position than if
he had not engaged in the conduct.
Similar reasoning applies to section 704 (a) : its purpose is to ensure that employees are not penalized for engaging in protected
activities. The statute, however, does not reward participation in such
activities by guaranteeing employment to workers who engage in
them. An unorthodox rule of causation that focuses on whether the
employee's participation in protected activities was one of several
reasons for the employer's actions may reward the employee with
guaranteed employment when he could have been discharged or
otherwise penalized in the absence of his opposition. As Doyle makes
clear, the employee's right to voice opposition to the conditions of his
employment is vindicated sufficiently by guaranteeing that he be
accorded the treatment he would have enjoyed in the absence of this
expression.
OPPOSITION AND THE UNION
Emporium Capwell Co. v. Western Addition Community Organization 110 illustrates the difficulties in protecting self-help opposition by
disgruntled employees. The Emporium Capwell Company, which
operated a department store, was a party to a collective bargaining
agreement that recognized the union as the sole collective bargaining
agent for the store's employees. The agreement contained an antidiscrimination clause and a clause prohibiting strikes and lockouts; it
also established grievance and arbitration procedures for processing
contract violations. In 1968 a group of employees presented the union
with a list of grievances, which included a claim of racial discrimination by the company. After investigating the allegations, the union
concluded that the company was guilty of discrimination and filed
a charge in accordance with the agreement's grievance procedures.
Dissatisfied with the contract's procedures for processing racial discrimination claims, however, the complaining employees unsuccessfully sought a meeting with the company's president. Thereafter,
they picketed the store and urged customers to boycott it. The employees were fired after warnings by the company failed to dissuade
them from pursuing their activities.
The employees then filed a charge with the National Labor Relations Board, claiming that the company had violated their right to
engage in concerted activities 111 and had committed an unfair labor
practice under section 8(a) (1) of the NLRA.1 2 Rejecting the em110. 420 U.S. 50 (1975).
111. 29 U.S.C. § 157 (1970). For the relevant text of § 7 see note 40 supra.
112. 29 U.S.C. § 158(a) (1) (1970).
1977]
EMPLOYEE OPPOSITION
ployees' claim, the Board concluded that an extension of protection
to their activities would undermine the NLRA's exclusivity principle," 3 which designates the union as the employees' exclusive bargaining agent." 4 The Court of Appeals for the District of Columbia
Circuit reversed, holding that self-help activity was protected unless
"the union was actually remedying the discrimination to the fullest
extent possible, by the most expedient and efficacious means." 15 The
court apparently thought that this result was necessary to harmonize
113. Section 9(a) of the NLRA, 29 U.S.C. § 159(a) (1970), provides in
pertinent part:
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or other
conditions of employment....
Section 8(a) (5) of the Act, 29 U.S.C. § 158(a) (5) (1970), provides that an
employer who refuses to bargain collectively with his employees' representatives
commits an unfair labor practice. Together, § 9 (a) and § 8(a) (5) direct the
employer to bargain with the majority representatives with respect to all matters concerning "rates of pay, wages, hours of employment, or other conditions of
employment." An employer who bargains on such matters with any person
other than the majority representative, including individual employees who seek
to deal directly with the company, commits an unfair labor practice. See Medo
Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944); J.L. Case Co. v. NLRB, 321
U.S. 332 (1944).
114. Emporium & Western Addition Community Organization, 192 N.L.R.B.
173, 185 (1971).
115. Western Addition Community Organization v. NLRB, 485 F.2d 917, 931
(D.C. Cir. 1973) (emphasis omitted). The imposition of this requirement was
questionable because an independent remedy was available to the employees if
their union failed to present their grievances fairly. See Miranda Fuel Co., 140
N.L.R.B. 181 (1962), enforcement denied, 326 F.2d 172 (2d Cir. 1963). A breach
of duty occurs when the union's conduct toward the employee is "arbitrary,
discriminatory, or in bad faith," Vaca v. Sipes, 386 U.S. 171, 190 (1967); in that
situation, the employee may seek damages from both the employer and the union.
Id. at 196-97. See generally Lewis, FairRepresentation in Grievance Arbitration:
Vaca v. Sipes, 1967 SuP. CT. REV. 81. A union's breach of its duty of fair representation, at least in race discrimination cases, also has been held to violate Title
VII. See Macklin v. Spector Freight Sys., Inc., 478 F.2d 979 (D.C. Cir. 1973).
The "most efficacious" standard established by the District of Columbia Circuit in
Western Addition also has been criticized for its potentially emasculating effect
on the exclusivity principle in cases of race discrimination, on the NLRA's
objective of insulating lawful and established bargaining relationships from the
pressure of recognitional picketing by rival labor organizations, and on the national policy promoting arbitration, rather than economic pressure, as the most
appropriate means of resolving disputes that arise under collective bargaining
agreements. See DiscriminationRemedies, supra note 17, at 33-36.
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
the NLRA with Title VII, which it regarded as protecting peaceful
11 6
picketing by employees.
The Supreme Court reversed and reiterated the Board's position
that protecting the employees' activities in this situation would subvert the labor laws' goal of majority rule. The decision emphasized
the union's "legitimate interest in presenting a united front on this
as [well as] on other issues and in not seeing its strength dissipated
and its stature denigrated by subgroups within the unit separately
pursuing what they see as separate interests." 118 The Court added
that, if the employer and the union did not comply with their legal
obligations, the employees could seek legal remedies, "whether by
means of conciliation through the offices of the EEOC, or by means
of federal-court enforcement at the instance of either that agency
or the party claiming to be aggrieved." 119 The Court thereby rejected
the contention that the self-help conduct should have been protected
under the NLRA to accommodate that Act with Title VII, and particularly with section 704(a). If the employees' conduct was protected by section 704 (a), Title VII provided the means through which
the employees could vindicate their rights.'20 More importantly, the
Court disagreed that the employees' conduct necessarily was protected by section 704 (a), noting that "[w]hether the protection afforded by § 704 (a) extends only to the right of access [to enforcement agencies] or well beyond it" was not a question properly presented in the case.' 2 1 This statement signaled the Court's retreat from
its previous broad pronouncement that section 704 (a) protected employees "attempting to protest or correct allegedly discriminatory
conditions of employment." 122
The concern voiced by the Supreme Court in Emporium Capwell
that self-help activities not be permitted to interfere with the central
goals of the labor laws is equally applicable to section 704 (a). An
extension of protection to such actions, either under section 8 (a) (1)
of the NLRA or under section 704 (a) of Title VII, would undermine
both the principle of exclusivity that promotes effective collective
bargaining and the goal that arbitration, rather than coercion, be
used to resolve grievances. 12 3 Encouraging rival factions to present
116. 485 F.2d at 927-30.
117. 420 U.S. at 58-70.
118. Id. at 70.
119. Id.
120. Id. at 72.
121. Id. at 71 n.25.
122. McDonnell Douglas Corp. v. Green, 411 U.S. at 796 (1973).
123. See Smith, supra note 26, at 390. Smith argues persuasively that a limitation of the Court's comments to § 8(a) (1) trivializes Emporium to a finding that
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EMPLOYEE OPPOSITION
competing claims to the employer would threaten industrial peace,
regardless of how the employer treated the claims. If the employer
was required to deny the claims of one group to satisfy another, the
attendant disharmony would produce strife not only between employees and their employer but also among the employees themselves.
In contrast, no important interests would be served by protecting
the conduct. The picketing employees in Emporium Capwell had two
separate but compatible remedies: arbitration and the filing of
charges under Title VII. If they had pursued both, an adverse
arbitral finding would not have barred their Title VII action. 124 Both
methods of resolving the dispute would have enjoyed the finality and
respect absent in a coerced concession, and both would have provided
an effective procedure for determining whether discrimination
actually had occurred. In Emporium Capwell the picketers unilaterally
made this determination, a conclusion that the Labor Board later rejected. 125 The employees avoided the process available to them for
obtaining an impartial determination of the issue and instead resorted to tactics of economic coercion. The significant fact is not that
the NLRB differed with the employees in assessing the situation,
but rather that the Board (or some other appropriate agency) was not
given the opportunity to determine whether the grievances were valid.
The employees in effect acted as judges of their own claim and enforcers of their own remedy.
In 1975, seventy-four percent of all collective bargaining agreements contained prohibitions of various forms of discrimination.2 0
These contractual guarantees, combined with the legal guarantee of
full union representation, 127 provided many employees with the two
separate remedies recognized by the Supreme Court in Emporium
Capwell. Both remedies, arbitration 128 and Title VII charges, relieve
redress was sought in the wrong forum. See also Lopatka, supra note 30, at
1216-18.
124. See Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
125. 192 N.L.R.B. at 184. The Board also found that the employees had a good
faith belief that they were the objects of the company's discrimination. Id.
126. 2 BNA COLLECTIVE BARGAINING NEGOT. & CONT. 95:5 (1975). One writer
has noted: "It has become almost standard to insert into collective bargaining
agreements a no-discrimination provision .
Arbitration'sGolden Age, in
.
.
."
Feller, The Coming End of
NATIONAL ACADEMY OF ARBITRATORS, ARBITRATION-
1976: PROCEEDINGS OF THE TWENTY-NINTH ANNUAL MEETING 97, 117 (1976)
[hereinafter cited as ARBITRATION-1976].
127. See notes 113-115 supra. See also Levitt, Title VII of the Civil Rights Act:
A Review of Significant Recent Decisions, 16 WM. & MARY L. REv. 529, 543
(1975).
128. A number of impediments prevent arbitration from being an effective
remedy in every situation. For example, unions traditionally have been insensitive
WILLIAM AND MARY LAW REVIEW
[Vol. 19:217
the employee from the burden of independently investigating his
claim. The complexity of Title VII laws suggests that employee and
employer alike rarely are qualified to assess accurately the merits
of a discrimination claim or to determine the appropriate relief or
remedy if discrimination exists. Unilateral action, therefore should be
discouraged on both sides of the dispute. Doubtful claims may be
resolved through informal discussion or through the available processes for adjudicating such claims.
Ths exclusivity principle arguably could preclude informal discussion between employee and employer relating to the existence of discrimination. Section 9 (a) of the NLRA, 129 however, grants employees
the right to present grievances to their employer without the intervention of the bargaining representative. The employer and employee
may resolve the grievance individually in a manner consistent with
the terms of the collective bargaining agreement if the bargaining
representative is given the opportunity to be present at the adjustment. 13 0 The right conferred by section 9 (a) is unenforceable against
the employer, 131 and merely allows the employer to adjust the grievance with the individual employee. The employer need not entertain
the grievance and may require the worker to use the procedures established under the collective bargaining agreement. Permitting the
employee to discuss a discrimination-related grievance would not
violate the exclusivity principle. Informal employee discussions with
an employer concerning suspected discrimination, moreover, provides
the parties with an opportunity to reach a private, uncoerced resolution of the grievance, a result consistent with the goals of Title VII.
If they fail to resolve their differences, the employee may invoke
to affirmative action against discrimination and have attached a low priority to
enforcement of such clauses in their contracts. See Gould, supra note 35, at 48;
Gould, Racial Equality in Jobs and Unions, Collective Bargaining, and the
Burger Court, 68 MICH. L. REV. 237, 244 (1969). In addition, arbitrators usually
are reluctant to rely on public law concepts in their decisions, and they generally
regard their function as enforcing the parties' intent rather than advancing
salutary notions of public policy. See Meltzer, Labor Arbitration and Overlapping
and Conflicting Remedies for Employment Discrimination,39 U. CHI. L. REV. 30,
32-33 (1971); Feller, supra note 126. Arbitration can be an effective remedy,
however, when the particular claim advanced is individual in scope and one that
can be resolved without modifying the collective bargaining agreement with
respect to the "rules of the shop." See Robinson & Neal, Arbitration of Employment DiscriminationCases: A Prospectus for the Future, in ARBITRATION-1976,
supra note 126, at 20, 28.
129. 29 U.S.C. § 159(a) (1970).
130. Id.
131. See Black-Clawson Co. v. Machinists Lodge 355, 313 F.2d 179 (2d Cir.
1962).
1977]
EMPLOYEE OPPOSITION
arbitration or Title VII remedies. Thus, an informal employee-employer discussion harms no cognizable interest under the labor laws
or Title VII.
CONCLUSION
Participation by individual employees or applicants for employment
in Title VII's enforcement machinery remains indispensable to accomplishing the congressional mandate that employment discrimination be eliminated. Individuals invoking their statutory rights serve
not only their personal interests but also the public interest in securing equal employment opportunities for all. Without their participation, the EEOC cannot adequately fulfill its responsibilities. To
encourage individual participation in the enforcement process, potential complainants must be protected from employer reprisal when
they file a charge with the EEOC, regardless of the charge's validity.
The possible victim of discrimination should be required neither to
relinquish his rights nor to gamble on the correctness of his grievance
at the risk of employer retaliation.
These considerations also apply to employees engaging in activities
opposed to perceived discriminatory employment practices; private
resolution of discrimination disputes should be encouraged if it can
be achieved without coercion. Practically, an employee may want to
seek such a settlement before filing a charge, either as a means for
seeking clarification or additional evidence or as a courtesy to his
employer. An employer correspondingly experiences less inconvenience from a direct approach by an employee than he does from
the filing of a discrimination charge. Opposition need not be protected, however, when an employee seeks to substitute self-help for
enforcement through statutory procedures established to eliminate
the need for such actions.
Although the employee who engages in opposition activities or who
resorts to Title VII's formal legal processes should be protected from
retaliation, Congress did not intend to provide the complainant with
more security than he otherwise would have enjoyed in the absence
of his participation in protected activities. The purpose of section
704 (a) is to protect employees who oppose discrimination from retaliation prompted by their opposition activities but not to insulate
the incompetent or unruly employee from discharge, irrespective of
the employer's attitude toward the worker's participation in opposition activities. Such an extended protection would lead to the
proliferation of frivolous complaints without advancing any of the
objectives of Title VII.